A Lawsuit Settlement Will Change the Rules by Early March 2022
Over the past two years, the processing of Employment Authorization Document (EAD) cards for L-2 spouses (who have accompanied their L-1 spouses in executive, managerial, or specialized knowledge jobs in the U.S.) has reached crisis levels of delays. Government processing regularly takes more than 6 months, and in many cases has been taking more than 1 year. During these lengthy processing delays, L-2 spouses have lost jobs or found themselves unable to work, even when their work directly contributes to the U.S. economy.
In September, a group of plaintiffs sued the U.S. Department of Homeland Security, which is the government agency responsible for immigration benefits in the USA, arguing that U.S. law does not require L-2 spouses to apply for EAD cards before being allowed to work because the proper interpretation of the law automatically gave L-2 spouses work authorization with or without the card.
The U.S. Department of Homeland Security settled the lawsuit on November 10, 2021. In its Settlement Agreement, the Department of Homeland Security agreed with the plaintiffs that the proper interpretation of the law granted L-2 spouses work authorization with or without EAD cards.
Although the U.S. government has agreed immediately to change its interpretation of the regulation, the agency needs time to provide processes and procedures to ensure that the interpretation is implemented across government agencies, which is why there is a 120 day timeline established for the agency to provide official policy updates in writing.
Companies Hiring or Employing L-2 Spouses Still Need to See EAD Cards for Now
Most companies need to check the documentation of their employees’ work authorization through the I-9 program. The Settlement Agreement did not make any changes to the I-9 program itself, so the existing I-9 rules still need to be followed. The U.S. government is going to update L-2 spouses’ I-9 status documents so that they will comply with the I-9 program requirements in the future, but at the present moment, L-2 status documents alone do not qualify as proof of work authorization for I-9 purposes. An EAD card is still currently required in addition to the current L-2 I-94 status document.
After the Settlement is Fully Implemented (by Early March 2022), L-2 Spouses Will Not Need EADs
U.S. Customs and Border Protection (CBP) is the entity in charge of issuing the I-94 document, which is the document that proves valid L-2 status. Within the next 120 days, by March 10, 2021, CBP will be updating its I-94 form to show that L-2 spouse status is a status that allows for automatic work authorization. Once the I-94 updates are made, the I-94 itself will satisfy the I-9 requirements for companies to hire and retain L-2 spouses as employees. An EAD will no longer be required.
L-2 Spouses With Expired EADs May Be Eligible for Automatic Extension in the Meantime
For those L-2 spouses who have expired EADs and who have an EAD extension in process with the government, the Settlement Agreement provides an allowance to obtain an automatic extension of work authorization for 180 days as long as the EAD extension application remains pending. To qualify for the 180 day extension, the L-2 spouse must meet all 3 conditions as follows:
Have an expired EAD card
Have the receipt notice for the pending EAD extension application
Have an unexpired L-2 I-94 document**
For those employees who are about to have their EAD expire, this is good news because they may be able to avoid a gap in work authorization.
For those employees whose EADs have already expired and who have been terminated or placed on a leave of absence as a result of the expiration, they may now have proof that they are once again authorized to work because of the 180 day automatic extension. L-2 spouses in this situation can talk to their former or current employers about returning to work. They can also seek new employment with any U.S. company.
**Note that L-2 spouses whose L-2 status is expired (as shown on their expired I-94) and who are in the extension process waiting for both the I-539 and I-765 forms to be adjudicated cannot currently benefit the automatic EAD renewal. L-2 spouses in this situation need to carefully strategize if they want to return to work. Please refer to Waypoint Immigration’s article here for some strategic considerations for L-2 spouses in this situation.
Disclaimer: This new interpretation of the law as adopted in the settlement is a new approach for U.S. government immigration authorities that has not yet been tested through time or experience. Waypoint Immigration strongly recommends that any L-2 spouse desiring a legal opinion on their situation consult with an attorney who can discuss the specifics of their personal circumstances. Waypoint Immigration will not be responsible for complications in any individual case where a consultation was not completed because this article is being provided for general information only.